by Delphine Luneau •
Ahead of State of the Union Address, Human Rights Campaign Highlights Notable Achievements, Opportunities to Further Improve President’s Record
WASHINGTON — As President Biden prepares to deliver his second State of the Union address on Tuesday, the Human Rights Campaign (HRC) — the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — is calling attention to the administration’s unparalleled record on advancing LGBTQ+ equality — from initiating executive actions and rulemakings to signing federal legislation into law. As state legislatures across the country have advanced hundreds of anti-LGBTQ+ bills – with an emphasis on attacking transgender youth – the Biden administration has served as an important and urgent counterweight, prioritizing policies that aim to protect against discrimination.
At the same time, a number of outstanding proposals that merit action remain on the table for the administration to take action on, with opportunities at hand to ensure that religious exemptions in regulations aren’t used to discriminate, that conversion therapy is prohibited as a fraudulent practice, that transgender kids are able to participate in school sports, and much more.
Most of the pro-LGBTQ+ achievements of the administration were among the more than 80 policy recommendations listed in HRC’s “Blueprint for Positive Change,” a groundbreaking document released in November 2020 that offered a roadmap toward equality for the then-incoming Biden administration.
“At the Human Rights Campaign, we have been proud to work with President Biden, Vice President Harris and their administration over the past two-plus years to move forward on a set of administrative policy initiatives that have reshaped how the federal government treats LGBTQ+ people – for the better,” said Kelley Robinson, Human Rights Campaign President. “While the rights of queer people – especially trans kids – have been under assault by extremist forces in state legislatures, the federal government has pursued a course that pushes back against discrimination and makes it easier for LGBTQ+ people to participate fully in society.
“From here, the work gets harder. We still must pass the Equality Act so that LGBTQ+ people nationwide have full nondiscrimination protections. We need national protections for abortion rights and voting rights. We need a comprehensive federal effort to do everything possible to defend LGBTQ+ people across the nation whose rights are being stripped away by state lawmakers. We need the administration to continue to put forth policies to fight against discrimination. We need to hear from the highest office in the land that we are greater than hate. We look forward to continuing to work with the Biden-Harris administration to make these goals into reality.”
A Track Record of Landmark Pro-LGBTQ+ Achievements
An arrow (➤) indicates items that were listed in HRC’s 2020 Blueprint for Positive Change for suggested executive branch actions.
➤ Ensuring consistent administrative implementation of Bostock v. Clayton County across all agencies enforcing civil rights statutes and provisions: On the day he was inaugurated, Jan. 20, 2021, President Biden issued the most substantive, wide-ranging LGBTQ+ executive order in U.S. history, extending protections against discrimination on the basis of sexual orientation and gender identity. The executive order affirmed the Supreme Court’s decision in Bostock vs. Clayton County, which secured workplace protections, and applied the holding of the Court to laws prohibiting discrimination in housing, education, health care and credit.
➤ Revoking the Trump Executive Order Limiting Diversity Training: In January 2021, on his second day in office, President Biden revoked a former Trump order that had banned federal agencies, contractors and recipients of federal funding from conducting certain diversity training on race and sex that also had implications for trainings on sexual orientation and gender identity.
➤ Revising restrictions on transgender individuals to return to an inclusive policy of military service: In January 2021, within his first week in office, President Biden followed through on his promise to repeal the discriminatory ban on transgender people serving openly in the military. An estimated 15,000 service members were impacted by the policy enacted under Trump.
➤ Ending the Global Gag Rule: In January 2021, President Biden signed an executive memorandum to immediately rescind the so-called Mexico City Policy, also known as the “global gag rule,” a decades-old policy barring international nonprofits from receiving U.S. funding if they provide abortion counseling or referrals.
➤ Appointing openly-LGBTQ+ justices, judges, executive officials and ambassadors: President Biden’s precedent-setting appointments include: Pete Buttigieg as Transportation Secretary; Dr. Rachel Levine as Assistant Secretary for Health in the Department of Health & Human Services; Shawn Skelly as Assistant Secretary of Defense for Readiness; Gina Ortiz Jones as Undersecretary of the Air Force; Chantale Wong as the U.S. Director of the Asian Development Bank; and Beth Robinson and Alison Nathan to seats on the U.S. Court of Appeals of the Second Circuit.
➤ Restoring Inclusive Implementation of the Equal Access Rule: In April 2021, Secretary of Housing and Urban Development Marcia Fudge announced plans to withdraw Trump-era proposed changes to the Equal Access Rule. The Obama administration’s policy ensures non-discrimination protections in HUD-funded housing and programs based on both sexual orientation and gender identity. It also protects LGBTQ+ families and ensures people seeking emergency housing are housed safely in accordance with their gender identity.
➤ Including a Non-Binary Gender Marker and Modernize Existing Requirements for Updating Gender Markers on United States Passports: Starting in early 2022, intersex, non-binary, or gender non-conforming people can choose a gender-neutral marker for their passports and Consular Report of Birth Abroad. The new policy no longer requires medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents.
➤ Rescinding and replacing regulations restricting coverage of Section 1557 of the Affordable Care Act: In July 2022, the administration announced a notice of proposed rulemaking relating to the Affordable Care Act aimed at strengthening non-discrimination provisions. The changes aim to improve access to health care for LGBTQ+ people by providing protections on the basis of sexual orientation and sex characteristics, and improving protections for gender identity.
➤ Ensuring the Enforcement LGBTQ Students’ Rights Under Title IX: In July 2022, the Department of Education proposed a new regulation to add sexual orientation and gender identity as enumerated protected characteristics within the Title IX regulation. The proposed rule would reverse May 2020 changes to Title IX that limited federally funded educational institutions’ obligation to address sexual harassment and assault.
➤ Restoring Nondiscrimination Standards for Government Contractors: In December 2022, the Department of Labor finalized a rule incorporating an expansive religious exemption for businesses and organizations contracting with the federal government that are covered under Executive Order 11,246—which explicitly prohibits discrimination on the basis of race, creed, color, religion, sex, national origin, sexual orientation, and gender identity.
➤ End Discrimination Against Gay and Bisexual Blood Donors: In January 2023, the Food and Drug Administration announced a long-awaited proposal to update the guidelines surrounding blood donation by gay, bisexual, and other men who have sex with men (MSM). Most significantly, the proposal aims to move to a science-based, individualized assessment approach to determine who should be allowed to donate blood, rather than the existing guidelines that unfairly restrict gay, bisexual, and other men who have sex with men from donating.
Working to Expand Federal Collection of Data About Sexual Orientation, Gender Identity, and Sex Characteristics: In January 2023, the administration released the Federal Evidence Agenda on Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI+) Equity, a document designed to guide agencies in bolstering federal data collection on sexual orientation, gender identity, and sex characteristics and thereby inform future policies based on the information gathered.
In addition to administrative actions, President Biden signed into law critical protections for LGBTQ+ people:
Signing the Reauthorization of the Violence Against Women Act Into Law: Legislation that reauthorized critical domestic violence programs. It also included a grant program targeting the LGBTQ+ community. It was signed into law as part of larger legislation in March 2022.
Signing the Respect for Marriage Act Into Law: Landmark legislation that enshrined marriage protections for same-sex and interracial couples in federal law was signed into law in December 2022.
Opportunities to Advance LGBTQ+ Equality
Pass the Equality Act: This legislation, which passed in the House of Representatives during the 2020-21 session, would provide consistent and explicit anti-discrimination protections for LGBTQ+ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service. Currently, 29 states lack such protections.
➤ Complete Implementation of the Bostock Executive Order: Administrative work remains to be done to ensure that President Biden’s executive order implementing the Bostock vs. Clayton County Supreme Court ruling is applied throughout the executive branch. Specifically, all federal agencies must update rules and policies that prohibit discrimination on the basis of sex to include sexual orientation and gender identity.
➤ Finalize Regulations on Religious Exemptions: In the Blueprint for Positive Change, HRC called on the administration to take a number of actions to ensure that religious exemptions aren’t used to advance discrimination. Among the areas of concern are the Department of Education’s accreditation standards of religious institutions of higher education in the Higher Education Opportunity Act; mandating public notice for receipt of Title IX Religious exemptions by colleges and universities; and revising the religious exemption reporting process for grantees in the Workforce Investment Act for faith-based organizations.
Issue Regulations on Transgender Students Participation in School Sports: In issuing the July 2022 regulation proposal to add sexual orientation and gender identity as enumerated protected characteristics within the Title IX regulation, the Department of Education signaled that it intends to make a separate rule regarding the participation of transgender athletes in school sports. When it is issued, the rule should protect trans kids in school sports who want to take part in team activities consistent with their gender identity.
➤ Finalize New Blood Donation Regulations: In January, the Food and Drug Administration (FDA) announced a proposal to update the guidelines surrounding blood donation by gay, bisexual, and other men who have sex with men (MSM), moving to a science-based, individualized assessment approach to determine who should be allowed to donate blood. The administration must move forward with finalizing this rule and should also address some drawbacks to the improved rule, such as how it handles blood donation deferrals for people who rely on pre-exposure prophylaxis, or PrEP.
➤ Prohibit the Practice of Conversion Therapy as a Fraudulent Business Practice: Current federal statutes and regulations fail to explicitly protect consumers from the fraudulent, deceptive, and unfair business practice of providing conversion therapy, which includes a range of harmful and discredited practices that seek to change a person’s sexual orientation or gender identity. The Federal Trade Commission should implement industry-wide regulations prohibiting the false and misleading advertising, marketing, and other business practices of any individual or organization that provides conversion therapy. Additionally, the Federal Trade Commission should take administrative enforcement action against individuals and organizations that currently offer conversion therapy in exchange for monetary compensation.
➤ Finalize Regulations Relating to Section 1557 of the Affordable Care Act: The administration should move forward with the rule changes proposed in July 2022 to improve access to healthcare for LGBTQ+ people by providing protections on the basis of sexual orientation and sex characteristics, and improving protections for gender identity.
➤ Finalize Regulations Relating to Title IX Enforcement of LGBTQ+ Students’ Rights: The administration should move forward with the rule changes proposed in July 2022 to add sexual orientation and gender identity as enumerated protected characteristics within the Title IX regulation,
➤ Promote and Protect the Rights of LGBTQ+ People in U.S. Foreign Assistance Programs: U.S. foreign assistance programs provide vital support and resources to combat HIV and other diseases and work to promote human rights for all people. The U.S. government should enact a comprehensive, consistent policy preventing foreign assistance from going to contractors, subcontractors, or grantees that advocate against the human rights of LGBTQ+ people, or that discriminate against LGBTQ+ people in the provision of services and in their employment practices. This should apply to all U.S. agencies funding international development work, including USAID, the Departments of State, Agriculture, Treasury, and others.
➤ Ensure All LGBTQ+ Military Personnel Have Access to PrEP Without Jeopardizing Job Status: The Department of Defense (DOD) must ensure military personnel have access to PrEP without fear of discrimination or retaliation. DOD should amend its existing guidance to ensure that discrimination against LGBTQ+ military personnel is prohibited and ensure access to and confidentiality of personnel who choose to use PrEP and other HIV/STI prevention tools.
➤ Ensure Transgender Veterans Have Full Access to Transition-Related Care: The Department of Veterans Affairs (VA), Veterans Health Administration directive on providing healthcare for transgender and intersex veterans (1341(2)) categorically excludes gender affirming surgery, which is critical to the health and well-being of transgender veterans. The VA should amend or repeal the current regulations and issue new regulations expressly extending medical benefits to include gender affirming surgery. This regulation also aligns with the trajectory of the federal courts, federal agencies, and the intent of the nondiscrimination provision in the Affordable Care Act.
➤ Make More LGBTQ+ Appointments to Key Positions Across Government: Despite advances by the Biden administration, LGBTQ+ people remain underrepresented among the justices, judges, executive officials and ambassadors appointed by the president. Continuing a course of appointing qualified LGBTQ+ nominees to these posts will make the federal government more representative of the population at large and help to combat discrimination.
The Human Rights Campaign is America’s largest civil rights organization working to achieve equality for lesbian, gay, bisexual, transgender and queer people. HRC envisions a world where LGBTQ+ people are embraced as full members of society at home, at work and in every community.
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